Tuesday, March 12, 2013

Imposition of 3-Years Supervised Release for Illegal Reentry Affirmed Despite District Court’s Erroneous Belief that Supervised Release Was Mandatory (Plain Error)

United States v. Cancino-Trinidad, No. 11-41344 (Stewart, Smith, Weiner)

Cancino-Trinidad pled guilty to illegal reentry and was sentenced to 32 months’ imprisonment and three years’ supervised release. He had a lengthy criminal history (28 convictions) and was re-arrested less than 3 months after his deportation.

The PSR included language from the pre-November 1, 2011 version of the Guidelines that the guideline range for a term of supervised release is at least two years but not more than three years. The amended USSG § 5D1.1, which was effective at the time of sentencing, provided that a "court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien . . . ."

At sentencing, the PSR was not modified to reflect the new range, and neither the court nor the government noted that the amended guideline rendered the imposition of supervised release discretionary. The panel found that it was plain error for the court to adopt a PSR with an incorrect supervised release range. The panel was not convinced, however, that this error affected his substantial rights since the court implied that supervised release would have a deterrent effect by resulting in greater criminal penalties should Cancino-Trinidad return. While Cancino-Trinidad raised the possibility that the court may have reached a different result had it realized that the imposition of supervised release was discretionary and even discouraged in such circumstances, the panel found that this did not rise to the requisite "probability." The panel even noted that had Cancino-Trinidad made such a showing, this was not an instance meriting the panel’s discretion to remand for resentencing. Lastly, the panel found that since the three years of supervised release was within the Guideline range, it was accorded the presumption of reasonableness, and was reasonable.

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